Carney v. Shockley, 14 JE 9.
| Decision Date | 29 December 2014 |
| Docket Number | No. 14 JE 9.,14 JE 9. |
| Citation | 26 N.E.3d 1217 |
| Parties | Todd CARNEY, Plaintiff–Appellee, v. Ronnie Lee SHOCKLEY, et al., Defendants–Appellants. |
| Court | Ohio Court of Appeals |
Steven Shrock, Clinton Bailey, Millersburg, OH, for Plaintiff–Appellee.
Mark F. Okey, Mark D. Okey, Carrollton, OH, for Defendants–Appellants Ronnie Lee and Bonnie Sue Shockley.
Stephen McCann, J. William Merry, Zanesville, OH, for Defendants–Appellants Mary Katherine Kerns and Beverly Lamotte.
{¶ 1} Defendants-appellants Mary Katherine Kerns and Beverly Lamotte appeal the decision of the Jefferson County Common Pleas Court granting summary judgment in favor of plaintiff-appellee Todd Carney, finding that appellants' mineral interests were abandoned. Appellants contend that the 1989 Dormant Mineral Act can no longer be applied after the 2006 amendments and ask that we reconsider our decision in Walker v. Shondrick–Nau, 7th Dist. No. 13NO402, 2014-Ohio-1499, 2014 WL 1407942 and subsequent decisions reiterating that position. We maintain our prior rulings that the 1989 DMA can still be used to formalize prior abandonments. Appellants' conditional argument under the 2006 DMA is thereby rendered moot and was never reached by the trial court in any event. Therefore, the judgment of the trial court finding abandonment under the 1989 DMA is affirmed.
{¶ 2} In October of 2012, Todd Carney filed a complaint seeking to reunite the minerals underlying his 45 acres in Jefferson County with the surface of said land. Half of the minerals rights were held by Ronnie Lee and Bonnie Sue Shockley, who are the appellants in Carney v. Shockley, 7th Dist. No. 14JE8.1 The other half of the minerals rights were held by Mary Katherine Kerns and Beverly Lamotte, the appellants in this case. These latter minerals were first severed in a 1951 deed.
{¶ 3} According to the stipulations of fact, no mineral events occurred thereafter until after Carney published a November 4, 2011 notice of intent to have the minerals declared abandoned under the 2006 DMA. Specifically, on December 22, 2011, Kerns and Lamotte filed separate claims to preserve their joint one-half mineral interest. Carney's complaint sought to declare this one-half of the minerals abandoned both under the 1989 DMA () and under the 2006 DMA ().
{¶ 4} Kerns and Lamotte filed a motion for summary judgment. They argued that they properly preserved their mineral interest under the 2006 DMA by filing a post-notice claim to preserve. As to the 1989 DMA, they urged that this version of the statute has not been in effect since 2006, noting that the DMA was amended in order to mandate pre-abandonment notice and to specify the date from which the twenty years is measured.
{¶ 5} They urged that although amendment will not generally affect the prior operation of a statute, if the amended version imposes a lesser burden, then the current version applies, citing R.C. 1.58(B) and arguing that the 2006 DMA reduced the forfeiture and thus forfeiture can only occur under the amended act. It was also argued that in actions commenced after amendment of a statute that relates to the relief being sought, the amended statute is applicable in the absence of a contrary expression of intent in the amendment; because the 2006 DMA contained no language that rights under the prior version remained, it was urged that the legislature made clear its intent that abandonments under the old law can no longer be declared.
{¶ 6} Carney filed a response and his own motion for summary judgment. He urged that the 2006 DMA did not undo what was already done under the 1989 DMA as the 2006 DMA contained no language expressly making it retrospective and thus it is prospective only. Carney noted that Kerns and Lamotte were improperly trying to invert the rule by their claim that the silence of the 2006 DMA as to the continued application of the 1989 DMA meant the 2006 DMA governs. It was also suggested that the reason the legislature did not make an expression of retroactivity was in order to ensure constitutionality because the amendment was not merely remedial but was substantive (as it would take away a vested right).
{¶ 7} Carney explained that he was merely asking the court to recognize what already occurred while the 1989 DMA was in effect. He stated that the 1989 DMA was self-executing and that the mineral interest was deemed abandoned with ownership automatically vesting in the surface owner if there was no activity within the look-back period. He noted how the United States Supreme Court in Texaco expressed that it was important to recognize the distinction between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did occur. He cited the various trial court cases ruling that the 1989 DMA can still be utilized to determine if minerals were previously abandoned.
{¶ 8} Carney thus urged that the issue of whether there was a subsequent abandonment under the 2006 DMA need not be reached because the minerals had already been abandoned under the 1989 DMA. He then posited that even if the court disagreed with the 1989 abandonment claim and had to reach the 2006 DMA, the post-notice claim to preserve did not save the minerals from abandonment, claiming the new procedure merely prevented a county recorder from filing a unilateral notice of abandonment and gave the mineral holder the right to prove there was in fact a prior savings event.
{¶ 9} On November 4, 2013, the trial court granted Carney's motion for summary judgment and denied the motion filed by Kerns and Lamotte. The court held that the 1989 DMA operated automatically to abandon a severed mineral interest if, at any time prior to the 2006 amendments, there existed a twenty-year period during which the mineral interest was dormant, i.e. was not subject to a savings event. The court concluded that the mineral interest was abandoned and vested in the surface owner as of March 22, 1992 (after the three-year grace period ended) as there had been no savings events after the original 1951 reservation. As abandonment occurred under the 1989 DMA, the court ruled that the December 2011 recorded claims to preserve were null and void and should be stricken.
{¶ 10} The court explained that its decision was dependent on a remaining claim presented by the Shockleys and allowed the parties to submit further motions. The other parties and an intervening Ohio Attorney General then submitted motions on the remaining issue concerning the constitutionality of a rolling look-back period, which issue did not concern Kerns and Lamotte. The court's February 28, 2014 judgment upholding the rolling look-back period disposed of all parties and claims and made the November 4, 2013 entry final, and Kerns and Lamotte then filed the within appeal.
{¶ 11} The 1989 Dormant Mineral Act became effective on March 22, 1989 in R.C. 5301.56 as an addition to the Ohio Marketable Title Act, which is contained within R.C. 5301.47 through R.C. 5301.56. The 1989 DMA provides that a mineral interest held by one other than the surface owner “shall be deemed abandoned and vested in the owner of the surface” if no savings event occurred within the preceding twenty years. R.C. 5301.56(B)(1)(c) ().
{¶ 12} The six savings events are as follows: (i) the mineral interest was the subject of a title transaction that has been filed or recorded in the recorder's office, (ii) there was actual production or withdrawal by the holder, (iii) the holder used the mineral interest for underground gas storage; (iv) a mining permit has been issued to the holder; (v) a claim to preserve the mineral interest was filed; or (vi) a separately listed tax parcel number was created. R.C. 5301.56(B)(1)(c)(i)-(vi).
{¶ 13} The statute provided the following grace period: “A mineral interest shall not be deemed abandoned under division (B)(1) of this section because none of the circumstances described in that division apply, until three years from the effective date of this section.” R.C. 5301.56(B)(2). There were no obligations placed upon the surface owner prior to the statutory abandonment and vesting.
{¶ 14} On June 30, 2006, amendments to the DMA became effective. No grace period was provided. The language in division (B), “shall be deemed abandoned and vested in the owner of the surface,” now operates only if none of the savings events apply and “if the requirements established in division (E) of this section are satisfied.” R.C. 5301.56(B).
{¶ 15} “Before a mineral interest becomes vested under division (B) of this section in the owner of the surface of the lands subject to the interest,” the surface owner shall provide a specific notice and file a timely affidavit of abandonment with the county recorder. R.C. 5301.56(E). See also R.C. 5301.56(E)(1) (), (E)(2) (affidavit of abandonment must be filed at least 30 but not later than 60 days after date notice is served or published), (F), (G) (specifying what the notice and affidavit must contain). In addition, the new twenty-year period for finding abandonment looks back from the date of this notice.
{¶ 16} The 2006 DMA also adds that a mineral holder who claims an interest has not been abandoned may file with the recorder: (a) a claim to preserve or (b) an affidavit containing a savings event within 60 days after the notice of abandonment is served or published. R.C. 5301.56(H)(1). This court...
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